IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ANTOINE SMALL, JR. : CIVIL ACTION

:

v. :

:

CITY OF PHILADELPHIA, ET AL. : NO. 05-5291

MEMORANDUM

Padova, J. February 26, 2007

This action arises from the shooting of Plaintiff, Antoine Small, Jr., by his fellow

Philadelphia Police Officer, Detective Robert Redanauer, during the arrest of Benjamin Hunter on

a warrant for domestic assault. Plaintiff has asserted claims against Defendants, the City of

Philadelphia and Detective Redanauer, pursuant to 42 U.S.C. § 1983 and state law, alleging that the

shooting violated his rights under the Fourth and Fourteenth Amendments to the United States

Constitution, Article 1, Sections 1 and 8 of the Pennsylvania Constitution, and amounted to assault,

battery and negligent infliction of emotional distress. Before the Court is Defendants’ Motion for

Summary Judgment. For the reasons which follow, Defendants’ Motion is granted in part and

denied in part.

I. BACKGROUND

Plaintiff was shot by Redanauer on December 9, 2003. (Redanauer Dep. at 6.) Between 5:00

p.m. and 6:00 p.m. on the evening of December 9, 2003, Detective Stephan Grace, Redanauer’s

partner, informed Redanauer that he had an arrest warrant for Benjamin Hunter and that the

complainant on the warrant had called him and said that Hunter wanted to meet her at the

intersection of 13th Street and Allegheny Avenue in Philadelphia. (Id. at 6-7.) The complainant also

told Grace that Hunter had a gun, was wearing a bulletproof vest, would be bringing help, and had

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told her not to bring the police. (Id. at 7.) Redanauer and Grace immediately got their equipment,

bulletproof vests and guns, and Redanauer drove Grace down Broad Street toward the intersection

of 13th and Allegheny. (Id. at 8.)

Redanauer and Grace also called members of the Five Squad, Police Officers Mocharnak,

Hernandez, Small and Fegley, who are usually in plain clothes and driving unmarked cars, to assist

with the arrest of Hunter. (Id. at 8-9.) On their way to 13th and Allegheny, Redanauer and Grace

stopped in the parking lot of a KFC at the intersection of Broad and Clearfield Roads to meet with

the Five Squad officers, who were all in another car, to plan Hunter’s arrest. (Id. at 9, 15.) None of

the officers exited their cars for this meeting, which lasted between three and five minutes. (Id. at

9, 14.) Grace told the Five Squad officers that they had a warrant for Hunter, who would be armed

with a handgun and wearing a bulletproof vest; described the car that Hunter was driving; and

instructed the Five Squad officers that, when they executed the warrant, the Five Squad Officers

should stay on one side of Hunter’s car while the Detectives were on the other side. (Id. at 10, Small

Dep. at 23.) The Detectives also told the Five Squad officers that if anyone was to see the car or

Hunter, they were to get on the radio and inform everyone, but did not give the Five Squad Officers

any direction as to who would approach Hunter when he arrived or who would give Hunter

directions or orders to effectuate the arrest. (Redanauer Dep. at 11-12.) 

After leaving the KFC, the Five Squad officers initially drove to 13th and Allegheny, then

left to respond to an assist officer call. (Small Dep. at 23.) Ten to fifteen minutes later, the Five

Squad officers returned to the corner of 13th and Allegheny and parked their car on Allegheny facing

eastbound. (Id. at 24-25.) The Five Squad officers could see the complainant from their parking

place. (Id. at 26.) Plaintiff got out of the car and walked to a bus stop at the corner of 13th and

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Allegheny to wait for Hunter. (Id. at 26-27.) While he waited for Hunter to arrive, he sat on the

steps of a house about three feet north of the bus stop and spoke with his partner, Hernandez, by cell

phone. (Id. at 28.) 

Afterspeaking with the Five Squad officers, Redanauer and Grace drove directly to 13th and

Allegheny and parked their car on the southeast corner of 13th and Camac Streets, arriving sometime

between 6:00 and 6:30 p.m. (Redanauer Dep. at 15-16.) Redanauer stayed in the car while Grace

got out of the car and crossed Allegheny Avenue to wait for Hunter to arrive. (Id. at 17-18.) Grace

took their police car’s handheld radio with him, leavingRedanauer (who had not brought his cellular

phone) with no means of communication with the other police officers. (Id. at 18-20.)

Approximately three minutes after he arrived at the corner of 13th and Camac Streets,

Redanauer observed Grace make a thumbs up sign, indicating that Hunter had arrived. (Id. at 20.)

Hunter stopped his car on the northeast corner of 13th and Allegheny, directly in front of the

Plaintiff, and spoke with the complainant through his open car window. (Id. at 23, Small Dep. at

28-29.) At the time he first saw Hunter, Plaintiff could also see Grace to his east walking on the

pavement while Redanauer slowly drove his car westbound. (Small Dep. at 28-29.) Plaintiff told

Hernandez that they were going to go get Hunter, hung up the phone, drew his gun and pulled out

his badge. (Id. at 29, 33.) As he approached Hunter’s car, Plaintiff saw Redanauer pull up and cut

off Hunter’s car. (Id. at 29.) Redanauer stopped his car so that it was parallel to, and slightly in

front of, Hunter’s car. (Redanauer Dep. at 25.) 

Redanauer remembers that, as he drove up, the driver’s side door of Hunter’s car was open

and Hunter had one foot out of the door and was waving at the complainant, who was also at the

intersection of 13th and Allegheny. (Id. at 24, 26.) As Redanauer pulled up to Hunter’s car,

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inserting his car between Hunter and the complainant, he heard what sounded like a gunshot to the

north. (Id. at 27-28. After hearing the gunshot, Redanauer saw the Plaintiff, who he recognized,

walk from the northeast corner of 13th and Allegheny, from a porch or the area of some bushes, over

to Hunter’s car. (Id. at 28-30.) Redanauer saw Plaintiff approach the front passenger side of

Hunter’s car, Redanauer was on the driver’s side of Hunter’s car. (Id. at 31.) Redanauer saw that

Plaintiff had a weapon drawn and heard Plaintiff give commands to Hunter to “let me see your

hands.” (Id. at 32.) Redanauer, who was still in his car with his gun out, was also giving commands

to Hunter. (Id. at 29.)

Plaintiff’s and Redanauer’s accounts of Hunter’s actions immediately prior to the shooting

differ in material respects. Redanauer remembers that, when he first drove up to Hunter’s car,

Hunter’s left foot was out of the car and his left hand was waving toward the complainant. (Id. at

26, 33-34.) Redanauer never saw Hunter’s right hand. (Id. at 34.) Once Redanauer drove up to

Hunter’s car, Hunter shut the door of his car and Redanauer could no longer see Hunter’s left hand.

(Id. at 34-35.) Redanauer then said, through his open passenger-side car window into Hunter’s open

driver-side car window: “let me see your hands” several times and said “[p]olice. This is the police.

Let me see your hands.” (Id. at 35.) During this time, Redanauer had his car in drive and his foot

on the brake. (Id. at 36.) Accordingly to Redanauer, Hunter eventually put his head down toward

his lap and threw up his left hand. (Id. at 35-36.) At this point, Redanauer, his gun pointing in

Hunter’s direction, ducked his head under the steering wheel and fired three shots in quick

succession “rapid, no pause, no hesitation.” (Id. at 36-37.) Even though Redanauer was aware that

Plaintiff was standing close to the front passenger-side window of Hunter’s car, Redanauer did not

look at Hunter when he fired. (Id. at 38, 40.) After he learned that Plaintiff had been shot,

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Redanauer exited his vehicle and assisted Officer Mocharnak in taking Hunter into custody. (Id. at

38.) Hunter had not been hit by any of the shots fired by Redanauer and did not have a weapon or

a bulletproof vest. (Id. at 38-39, Pl. Ex. A at 2.)

Plaintiff remembers that, when he walked up to the front passenger-side window of Hunter’s

vehicle, Grace was at the rear of the vehicle. (Small Dep. at 31.) Redanauer had pulled his car up

to Hunter’s vehicle but Plaintiff did not see what Redanauer was doing because he was watching

Hunter. (Id. at 34.) Plaintiff gave Hunter a command to “[t]urn the vehicle off.” (Id. at 31.)

Hunter had one hand on the steering wheel and the other hand on the gearshift and it appeared to

Plaintiff that Hunter had put his vehicle in reverse. (Id. at 32.) Plaintiff gave Hunter another

command to “[t]urn the vehicle off” and then heard two shots and felt a pain in his leg. (Id.)

Plaintiff was shot in the right leg. (Pl. Ex. A at 1.) At the time that he was shot, Plaintiff was

standing next to the front passenger-side window of Hunter’s car, a few inches from the car. (Id. at

33-34.) Plaintiff did not see Hunter make any gestures except for appearing to put the car in reverse.

(Id. at 36.) Plaintiff observed that Hunter remained seated upright, leaning a little forward, and did

not see him duck down below the door panel or do anything with his hands except keep them on the

steering wheel and the gearshift. (Id. at 36-37.) Plaintiff believes that one to two minutes elapsed

between the time he approached Hunter’s front passenger-side window and the time he was shot.

(Id. at 37.) 

The Philadelphia Police Department, Internal Affairs Division (“IAD”), investigated

Plaintiff’s shooting. (Pl. Ex. A.) The IAD investigation found that Redanauer may have violated

two police directives when he fired at Hunter, shooting Plaintiff:

Detective Redanauer had prior information that Benjamin Hunter may

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be armed with a gun and wearing a bullet proof vest. Nonetheless,

the Detective stopped his vehicle in front of Hunter’s car, a most

vulnerable position. Detective Redanauer laid across the front seat of

the car, with one foot on the brake and fired out the passenger side

window without sighting a target. Therefore, considering the totality

of the circumstances, Det. Redanauer may be in violation of Directive

10, Section II-E, which states, “Police officers should ensure their

actions do not precipitate the use of deadly force by placing

themselves or others in jeopardy by taking unnecessary, overly

aggressive, or improper actions.

Detective Redanauer observed P/O Small on the sidewalk directly

adjacent to Hunter’s car when he (Det. Redanauer) pulled in front of

Hunter’s car. Therefore, Detective Redanauer may also be in

violation of Directive 10, Section II-C, which states, “Police officers

should not discharge their weapons when doing so will unnecessarily

endanger innocent people.”

(Pl. Ex. A at 8-9.) The Internal Affairs Division recommended that Redanauer be suspended for

twenty days as a result of these violations. (Redanauer Dep. at 56.) Redanauer served the twentyday suspension. (Id. at 56.) In addition to the twenty-day suspension, Redanauer received

instruction on Directive 10, the use of deadly force, and a counseling memo. (Id. at 59.)

II. LEGAL STANDARD

Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories,

and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(c). An issue is “genuine” if the evidence is such that a reasonable jury could return a verdict for

the non-moving party. Anderson v. LibertyLobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute

is “material” if it might affect the outcome of the case under governing law. Id.

A party seeking summary judgment always bears the initial responsibility for informing the

district court of the basis for its motion and identifying those portions of the record that it believes

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demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317,

322 (1986). Where the non-moving party bears the burden of proof on a particular issue at trial, the

movant’s initial Celotex burden can be met simply by “pointing out to the district court that there

is an absence of evidence to support the non-moving party’s case.” Id. at 325. After the moving

party has met its initial burden, “the adverse party’s response, by affidavits or otherwise as provided

in this rule, must set forth specific facts showing that there is a genuine issue for trial.” Fed. R. Civ.

P. 56(e). That is, summary judgment is appropriate if the non-moving party fails to rebut by making

a factual showing “sufficient to establish the existence of an element essential to that party’s case,

and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322.

“Speculation, conclusory allegations, and mere denials are insufficient to raise genuine issues of

material fact.” Boykins v. Lucent Technologies, Inc., 78 F. Supp. 2d 402, 407 (E.D. Pa. 2000).

Indeed, evidence introduced to defeat or support a motion for summary judgment must be capable

of being admissible at trial. Callahan v. AEV, Inc., 182 F.3d 237, 252 n.11 (3d Cir. 1999) (citing

Petruzzi’s IGA Supermarkets, Inc. v. Darling-Delaware Co., 998 F.2d 1224, 1234 n.9 (3d Cir.

1993)). The Court must view the evidence presented on the motion in the light most favorable to

the opposing party. Anderson, 477 U.S. at 255.

III. DISCUSSION

A. Section 1983 Claims

Section 1983 provides a remedy against “any person” who, under the color of the law,

deprives another of his constitutional rights. 42 U.S.C. § 1983. To establish a claim under § 1983,

a plaintiff must set forth: (1) a deprivation of a federally protected right, and (2) commission of the

deprivation by one acting under color of state law. Lake v. Arnold, 112 F.3d 682, 689 (3d Cir.

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1997). Plaintiff claims that his shooting by Redanauer subjected him to an unreasonable seizure,

thus violating his rights under the Fourth Amendment, and violated his right to substantive due

process pursuant to the Fourteenth Amendment. Defendants do not dispute that Redanauer was

acting under color of state law at the time he shot the Plaintiff. (Defs.’ Mem. at 3.) Defendants seek

the entry of summary judgment on their behalf on Plaintiff’s claims under both the Fourth and

Fourteenth Amendments.

1. The Fourth Amendment claim

The Fourth Amendment to the Constitution provides, in relevant part, that: “[t]he right of the

people to be secure in their persons, houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated. . . .” U.S. Const. amend. IV. Plaintiff claims that his shooting

violated the Fourth Amendment’s guarantee against unreasonable seizures because the shooting

effected a seizure of his person through the use of excessive force. “A claim for excessive force

under the Fourth Amendment requires a plaintiff to show that a seizure occurred and that it was

unreasonable.” Curley v. Klem, 298 F.3d 271, 279 (3d Cir. 2002) (citation omitted). Defendants

argue that they are entitled to summary judgment on this claim because Plaintiff cannot establish that

Redanauer’s actions amounted to a seizure of the Plaintiff under the Fourth Amendment. Although

a seizure occurs when “‘an officer restrains the freedom of a person to walk away’” id. (quoting

Tennessee v. Garner, 471 U.S. 1, 7 (1985)), the Supreme Court has explained that, to be actionable

under Fourth Amendment, the seizure must be intentional:

A Fourth Amendment seizure does not occur whenever there is a

governmentally caused termination of an individual's freedom of

movement (the innocent passerby), nor even whenever there is a

governmentally caused and governmentally desired termination of an

individual’s freedom of movement (the fleeing felon), but only when

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there is a governmental termination of freedom of movement through

means intentionally applied.

Brower v. County of Inyo, 489 U.S. 593, 596-97 (1989). Plaintiff does not contend that Redanauer

intended to shoot him. Indeed, he admits that Redanauer had no animosity towards him and that

Redanauer did not intend to shoot him. (Small Dep. at 18, 40.) Plaintiff contends that his seizure

was intentional for purposes of the Fourth Amendment because Redanauer knew that he was at the

front passenger-side door of Hunter’s car when Redanauer fired in that direction, intending to shoot

Hunter. The authority relied on by Plaintiff to support this proposition is inapposite. Plaintiff relies

on Curley, in which the United States Court of Appeals for the Third Circuit found that defendant

Klem, a New Jersey State Trooper, violated the Fourth Amendment rights of Curley, a Port Authority

Police Officer, when he intentionally shot Curley, mistaking him for an armed criminal suspect who

had murdered a police officer. Curley, 298 F.3d at 273, 279-80. Plaintiff also relies on Jensen v.

City of Oxnard, 145 F.3d 1078 (9th Cir. 1998), in which the United States Court of Appeals for the

Ninth Circuit found that Jensen stated an unreasonable seizure claim against a fellow officer,

Sergeant Christian, who had allegedly violated Jensen’s Fourth Amendment rights by using

excessive and unreasonable force by intentionally shooting him while under the mistaken belief that

Jensen was an armed criminal. Id. at 1082-83 (“The allegation that Sergeant Christian, by

intentionally shooting at a figure he mistook to be an armed criminal, engaged in a Fourth

Amendment seizure is supported in the law.”) (citing Brower, 489 U.S. at 596-97; Garner, 471 U.S.

at 7). In the instant case, however, Redanauer, unlike Klem and Christian, did not intentionally fire

at the Plaintiff, mistakenly believing him to be someone else. Redanauer intentionally fired at

Hunter and missed, striking Plaintiff by mistake. 

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Plaintiff also relies on Fisher v. City of Memphis, 234 F.3d 312 (6th Cir. 2000), in which the

United States Court of Appeals for the Sixth Circuit found that the district court properly applied a

Fourth Amendment analysis to a Section 1983 excessive force claim brought by a woman who had

been shot when a police officer fired into the car in which she was a passenger. Id. at 315, 319. The

Sixth Circuit explained that, while “the Fourth Amendment does not apply to § 1983 claims ‘which

seek remuneration for physical injuries inadvertently inflicted upon an innocent party by police

officers’ use of force while attempting to seize a perpetrator’. . . police officers do seize any person

who is a ‘deliberate object of their exertion of force.” Id. at 318 (quoting Claybrook v. Birchwell,

199 F.3d 350, 359 (6th Cir. 2000)). The Sixth Circuit determined that the “car was the intended

target of Defendant’s intentionally applied exertion of force” and that, “[b]y shooting at the driver

of the moving car, [the officer] intended to stop the car, effectively seizing everyone inside, including

the Plaintiff.” Id. at 318-19. In this case, however, Hunter’s car was not the intended target of

Redanauer’s intentional use of force, Hunter was, and the fact that Plaintiff was in the immediate

vicinity of Hunter’s car does not make him the intentional target of the deadly force directed toward

Hunter.

Plaintiff asks us to extend the definition of a Fourth Amendment seizure to encompass the

foreseeable, but unintended, victims of deadly force directed toward others. Plaintiff has not

identified any authority which supports the proposition that the Fourth Amendment protects

individuals who are foreseeable victims of deadly force intentionally used against others and we have

found none. C.f. Schultz v. Braga, 455 F.3d 470, 482 (4th Cir. 2006) (noting that “the Fourth

Amendment does not protect persons who were merely ‘reasonably foreseeable victims’ of excessive

force inflicted upon another”). Indeed, the Third Circuit has explained that, unlike the situation

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where the police intentionally shoot a person who is mistakenly believed to be a criminal, there is

no Fourth Amendment seizure where the police mistakenly shoot an innocent bystander while

attempting to shoot a criminal:

if a police officer fires his gun at a fleeing robbery suspect and the

bullet inadvertently strikes an innocent bystander, there has been no

Fourth Amendment seizure. If, on the other hand, the officer fires his

gun directly at the innocent bystander in the mistaken belief that the

bystander is the robber, then a Fourth Amendment seizure has

occurred. 

Berg v. County of Allegheny, 219 F.3d 261, 269 (3d Cir. 2000) (citing Medeiros v. O’Connell, 150

F.3d 164, 168-69 (2d Cir.1998); Rucker v. Harford County, 946 F.2d 278, 281 (4th Cir.1991);

Landol-Rivera v. Cruz Cosme, 906 F.2d 791, 795 (1st Cir.1990); Brower, 489 U.S. at 596). We

find, accordingly, that because Plaintiff was not the intended target of Redanauer’s gunshot, he was

not subject to a Fourth Amendment seizure. Defendants’ Motion for Summary Judgment is,

accordingly, granted with respect to Plaintiff’s Section 1983 claim for violation of his Fourth

Amendment rights.

2. The Fourteenth Amendment claim

“The Due Process Clause of the Fourteenth Amendment provides: ‘[N]or shall any State

deprive any person of life, liberty, or property, without due process of law.’” Daniels v. Williams,

474 U.S. 327, 331 (1986) (quoting U.S. Const. amend. XIV). “‘The touchstone of due process is

protection of the individual against arbitrary action of government.’” County of Sacramento v.

Lewis, 523 U.S. 833, 845 (1998) (quoting Wolff v. McDonnell, 418 U.S. 539, 558 (1974)). The

Supreme Court has instructed that “only the most egregious official conduct can be said to be

‘arbitrary in the constitutional sense.’” Id. at 846 (quoting Collins v. Harker Heights, 503 U.S. 115,

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129 (1992)). Consequently, “the substantive component of the Due Process Clause is violated by

executive action only when it ‘can properly be characterized as arbitrary, or conscience shocking,

in a constitutional sense.’” Id. at 847 (quoting Collins, 503 U.S. at 128). 

Defendants argue that they are entitled to summary judgment on Plaintiff’s substantive due

process claim because Redanauer’s actions were not conscience shocking. The Third Circuit has

explained that the determination of whether a particular action by a governmental official “shocks

the conscience” depends upon the context of those actions:

The question of whether a given action “shocks the conscience” has

an “elusive” quality to it. Estate of Smith v. Marasco (Smith I), 318

F.3d 497, 509 (3d Cir. 2003). At one end of the spectrum of culpable

conduct, negligent behavior can never rise to the level of conscience

shocking. See Lewis, 523 U.S. at 849, 118 S.Ct. 1708 (“[L]iability

for negligently inflicted harm is categorically beneath the threshold

of constitutional due process.”). At the other end of the spectrum,

actions “intended to injure in some way unjustifiable by any

government interest” are those “most likely to rise to the

conscience-shocking level.” Id. Acts that fall between the extremes

of mere negligence and harmful intent require courts to make “closer

calls,” based on a context-specific inquiry. Id.

Kaucher v. County of Bucks, 455 F.3d 418, 426 (3d Cir. 2006). The Third Circuit has instructed

that we “evaluate the conditions under which a defendant acted in order to ascertain the relevant

standard of culpability.” Id. Consequently, if the official is “‘confronted with a hyperpressurized

environment such as a high-speed chase . . . it is usually necessary to show that the officer

deliberately harmed the victim.’” Id. (quoting Estate of Smith v. Marasco (Smith II), 430 F.3d 140,

153 (3d Cir. 2005)). Where the official has the time to act “‘in a deliberate fashion . . . deliberate

indifference may be sufficient to shock the conscience.’” Id. (quoting Smith II, 430 F.3d at 153).

“Where a defendant has to act with some urgency, but does not have to make split-second decisions

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. . . the defendant’s actions must ‘reach a level of gross negligence or arbitrariness that indeed shocks

the conscience.’” Id. (quoting Miller v. City of Philadelphia, 174 F.3d 368, 375-76 (3d Cir. 1999)).

In this last situation, in which a state actor may need to act “in a matter of hours or minutes” and

where “there is some urgency and only ‘hurried deliberation’ is practical,” the Third Circuit has

instructed that “the relevant question is whether the officer consciously disregarded a great risk of

harm.” Sanford v. Stiles, 456 F.3d 298, 310 (3d Cir. 2006).

Defendants contend that, at the time he shot the Plaintiff, Detective Redanauer was

“confronted with a hyperpressurized environment” and, since he did not intend to shoot the Plaintiff,

his actions were not conscience shocking in a constitutional sense. We find, however, that there is

evidence on the record upon which a jury could find that Redanauer did not have to make splitsecond decisions and, in fact, had, at a minimum, minutes to determine his course of action toward

Hunter. Indeed, there is evidence on the record that Hunter was sitting upright in his car with both

hands visible at all relevant times and did nothing to precipitate urgent action on the part of

Redanauer. There is also evidence that Redanauer’s own actions precipitated his use of deadly force.

There is evidence that Redanauer’s lack of planning and inability to communicate with his fellow

police officers contributed to the urgency of his decision making. Moreover, the IAD found that

Redanauer violated Directive 10, Section II-E which states: “Police officers should ensure their

actions do not precipitate the use of deadly force by placing themselves or others in jeopardy by

taking unnecessary, overly aggressive, or improper actions.” (Pl. Ex. A at 8.) We further find that

there is evidence on the record upon which a jury could find that Redanauer consciously disregarded

a great risk of harm to the Plaintiff, who Redanauer knew was standing next to the front passengerside window of Hunter’s car, when he blindly shot in Hunter’s direction. (Pl. Ex. A at 8-9.)

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Consequently, we find that there are genuine issues of material fact with respect to the standard that

should be applied to Plaintiff’s substantive due process claim and regarding whether Redanauer’s

actions were conscience shocking in a constitutional sense. We hold, accordingly, that there are

genuine issues of material fact regarding whether Redanauer violated Plaintiff’s Fourteenth

Amendment right to substantive due process.

Defendants also argue that Redanauer is entitled to the entry of summary judgment in his

favor on Plaintiff’s substantive due process claim because he is entitled to qualified immunity with

respect to that claim. Under the qualified immunity defense, “police officers performing

discretionary functions are ‘shielded from liability for civil damages insofar as their conduct does

not violate clearly established statutory or constitutional rights of which a reasonable person would

have known.’” Schultz, 455 at 476 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). There

are two steps to the Court’s inquiry regarding qualified immunity, the Court first determines whether,

“viewing the facts in the light most favorable to the plaintiff, the officer has violated a particular

constitutional right.” Id. The Court then determines “whether that right was clearly established at

the time of the violation.” Id. (citing Saucier v. Katz, 533 U.S. 194, 200 (2001)). In considering

whether the right was clearly established, we determine whether “‘it would be clear to an objectively

reasonable officer that his conduct violated [the constitutional] right.’” Id. (quoting Brown v.

Gilmore, 278 F.3d 362, 367 (4th Cir. 2002)). However, where, as here, “there are unresolved

disputes of historical fact relevant to the immunity analysis” a “a decision on qualified immunity

[would] be premature.” Curley, 298 F.3d at 278. Since there are material issues of fact for the jury

regarding whether Redanauer’s actions were conscience shocking, we find that there are “disputed,

historical facts material to the objective reasonableness of [Redanauer’s] conduct” which “give rise

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to a jury issue” regarding his entitlement to qualified immunity. Id. Defendants’ Motion for

Summary Judgment is, therefore, denied as to Plaintiff’s claim that Redanauer’s actions violated his

Fourteenth Amendment right to substantive due process.

3. The Monell claim

The Complaint asserts a claim against the City of Philadelphia pursuant to Section 1983,

averring that the City is responsible for the violation of Plaintiff’s constitutional rights. In Monell

v. Dept. of Soc. Services, 436 U.S. 658 (1978), the Supreme Court established that municipal

liability under 42 U.S.C. § 1983 may not be proven under the respondeat superior doctrine, but must

be founded upon evidence that the government unit itself supported a violation of constitutional

rights. 436 U.S. at 691-95. Thus, municipal liability attaches only when “execution of a

government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may

fairly be said to represent official policy, inflicts the injury.” Id. at 694. “Policy is made when a

‘decisionmaker possess[ing] final authority to establish municipal policy with respect to the action’

issues an official proclamation, policy, or edict.” Andrews v. City of Philadelphia, 895 F.2d 1469,

1480 (3d Cir. 1990) (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986)). Custom, on

the other hand, can be proven by showing that a given course of conduct, although not specifically

endorsed or authorized by law, is so well-settled and permanent as virtually to constitute law.

Andrews, 895 F.2d at 1480; see also Fletcher v. O’Donnell, 867 F.2d 791,793-94 (3d Cir. 1989)

(“Custom maybe established by proof of knowledge and acquiescence.”).

A plaintiff bears the additional burden of proving that the municipal practice was the

proximate cause of the injuries suffered. Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990)

(citing Losch v. Borough of Parkesburg, 736 F.2d 903, 910 (3d Cir. 1984)). To establish causation,

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a plaintiff must demonstrate a “plausible nexus” or “affirmative link” between the municipality’s

custom and the specific deprivation of constitutional rights at issue. Bielevicz at 850 (citing Estate

of Bailey by Oare v. County of York, 768 F.2d 503, 507 (3d Cir. 1985)). Plaintiff, however, need

not demonstrate that his injuries were the direct result of formal departmental procedures or

encouragement in order to satisfy the nexus requirement. Bielevicz at 850. 

Plaintiff argues that the City of Philadelphia is liable to him in this case because of its failure

to adequately train and supervise Redanauer in two areas: 1) the use of deadly force and 2) the

execution of high-risk arrest warrants. The Third Circuit has held that, on a failure to train claim,

a plaintiff must identify a municipal policy or custom that amounts to deliberate indifference, which

typically requires proof of a pattern of underlying constitutional violations, and must also

demonstrate that the inadequate training caused a constitutional violation. Carswell v. Borough of

Homestead, 381 F.3d 235, 244 (3d Cir. 2004). Consequently, to survive summary judgment on a

failure to train claim, the Plaintiff must present evidence that the need for more or different training

was so obvious that the policymaker’s failure to respond amounts to deliberate indifference. Brown

v. Muhlenberg Twp., 269 F.3d 205, 216 (3d Cir. 2001). Defendants have moved for summary

judgment on this claim on the grounds that the City provides training for its police officers regarding

serving warrants and the use of deadly force and because Plaintiff has failed to point to a pattern of

underlying constitutional violations. 

As support for his contention that the City does not train its officers with respect to executing

high-risk warrants, Plaintiff relies on Redanauer’s deposition testimony that he was not given

specific training regarding the use of back-up officers in executing an arrest warrant and that

planning for such arrests is done on a case by case basis. (Redanauer Dep. at 62-63.) Redanauer

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testified that he has not received specific training with respect to where backup officers should be

situated, who should approach the suspect, and who should talk to the suspect. (Id. at 63.) He has,

however, received annual training in officer safety, including how to safely conduct a vehicle stop.

(Id. at 63-64.) In addition, Sgt. Jefferson Campbell, who was assigned to the Philadelphia Police

Department’s 39th District, testified that the Police Department provides training in the use of

backup officers in an arrest warrant situation on the street, including training with respect to

communications during the arrest, who should approach the suspect and who should speak to the

suspect. (Campbell Dep. at 31.)

Plaintiff’s expert on criminology, Paul McCauley, Ph.D., has opined, based upon the

International Association of Chiefs of Police Training Keys, that the warrant for the arrest of Hunter

was a high-risk warrant that required planning for safe and effective execution. (Pl. Ex. D at 4.) He

further opined, based on the depositions of Plaintiff and Redanauer, that a “lack of officer training

in executing recurring high-risk tactical operations that [are] likely to result in the use of deadly

force, as under these circumstances, reflects a deliberate indifference to Officer Small’s well being.”

(Id. at 10.) He also opined that the lack of this training resulted in the reckless actions of the

Philadelphia police officers that were direct causes of the harm suffered by Plaintiff. (Id.).

Plaintiff has presented no evidence that the use of deadly force training that the City provides

to its officers is inadequate. We find, accordingly, that the City is entitled to the entry of judgment

as a matter of law on Plaintiff’s Monell claim to the extent that claim relies on the City’s allegedly

inadequate training on the use of deadly force. Moreover, there is evidence that the City provides

training for its officers regarding safely performing traffic stops and the use of backup officers in

serving high-risk warrants. Plaintiff has produced no probative evidence that this training is

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constitutionally inadequate. His reliance on his expert’s opinion that a “lack of officer training in

executing recurring high-risk tactical operations that [are] likely to result in the use of deadly force,

as under these circumstances, reflects a deliberate indifference,” is misplaced. McCauley’s opinion

that the City did not provide adequate training in “recurring high-risk tactical operations” relies on

the actions taken by the police officers involved with Hunter’s arrest. His opinion does not rely on

any evidence with respect to the nature and quality of the Philadelphia Police Department's present

training program regarding the execution of high-risk arrest warrants or high-risk tactical operations.

Indeed, his opinion cites no evidence of the City’s training programs in this area. 

By focusing “upon the actions of [Redanauer] instead of the policies of the city” Plaintiff

“improperly extrapolates his experience with [Redanauer] as an indicia of inadequate police training

citywide.” DiJoseph v. City of Philadelphia, 947 F. Supp. 834, 842 (E.D. Pa. 1996). The Supreme

Court determined in City of Canton, Ohio v. Harris, 489 U.S. 378 (1989), that a plaintiff “cannot

properly demonstrate that the City failed to train its police officers simply through proffering one

example of police misconduct. That alone is insufficient.” DiJoseph, 947 F. Supp. at 842. The

Supreme Court explained in Canton that, in a failure to train case, “the focus must be on adequacy

of the training program in relation to the tasks the particular officers must perform. That a particular

officer may be unsatisfactorily trained will not alone suffice to fasten liability on the city, for the

officer’s shortcomings may have resulted from factors other than a faulty training program.” Canton

489 U.S. at 390-91 (citations omitted). Moreover, it is not sufficient “to prove that an injury or

accident could have been avoided if an officer had had better or more training . . . Such a claim

could be made about almost any encounter resulting in injury, yet not condemn the adequacy of the

program . . . .” Id. at 391. In focusing the inquiry on the municipality’s training program, rather than

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the officer’s actions, the Supreme Court recognized that “adequately trained officers occasionally

make mistakes; the fact that they do says little about the training program or the legal basis for

holding the city liable.” Id. We find that Plaintiff has not demonstrated that the training provided

by the City to its officers regarding the execution of high-risk warrants or high-risk tactical

operations is constitutionally deficient.

Defendants also argue that the City is entitled to summary judgment on Plaintiff’s Monell

claim because Plaintiff has not demonstrated that any failure to provide relevant training in this case

amounts to deliberate indifference because Plaintiff has not shown a pattern of similar constitutional

violations. Plaintiff has submitted no evidence of other persons who have been harmed by a lack

of training with respect to the execution of high-risk warrants or high-risk tactical operations.

Plaintiff argues that proof of such a pattern is not necessary in cases where there is an obvious need

for training to avoid violations of constitutional rights. The Third Circuit has recognized that,

although failure to train “can ordinarily be considered deliberate indifference only where the failure

has caused a pattern of violations . . . it is possible to maintain a claim of failure to train without

demonstrating such a pattern.” Berg v. County of Allegheny, 219 F.3d 261, 276 (3d Cir. 2000)

(citing Bd. ofCountyComm’rs ofBryan County v. Brown, 520 U.S. 397, 408-09 (1997)). However,

a failure to train may be proven in the absence of a pattern of constitutional violations only “in a

narrow range of circumstances” where “a violation of federal rights may be a highly predictable

consequence of a failure to equip law enforcement officers with specific tools to handle recurring

situations.” Bryan County, 520 U.S. at 409. The Supreme Court has explained that:

The likelihood that the situation will recur and the predictability that

an officer lacking specific tools to handle that situation will violate

citizens’ rights could justify a finding that policymakers’ decision not

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20

to train the officer reflected “deliberate indifference” to the obvious

consequence of the policymakers’ choice--namely, a violation of a

specific constitutional or statutory right. The high degree of

predictability may also support an inference of causation--that the

municipality’s indifference led directly to the very consequence that

was so predictable.

Id. at 409-10. The Supreme Court has explained that a failure to train may be established without

a pattern of constitutional violations where, for example, city policymakers arm police officers with

firearms but fail to provide them with training in the use of deadly force. See Canton, 489 U.S. at

390 n.10 (citing Tennessee v. Garner, 471 U.S. 1 (1985)). Plaintiff has pointed to no authority for

a finding that situations such as the arrest of Hunter, where six police officers attempted to serve an

arrest warrant on an individual who was thought to be armed by making a traffic stop, falls in the

“narrow range of circumstances” where “a violation of federal rights may be a highly predictable

consequence of a failure to equip law enforcement officers with specific tools to handle recurring

situations.” See Bryan County, 520 U.S. at 409-10. We find that the situation which occurred here

is not the sort of situation which brings with it the “high degree of predictability [that] may support

an inference of causation.” Id. Consequently, we find that Plaintiff has not met his burden of

presenting evidence that the need for more or different training was so obvious that the City’s failure

to provide this training amounts to deliberate indifference. See Brown, 269 F.3d at 216. Defendants’

Motion for Summary Judgment is, therefore, granted with respect to Plaintiff’s Monell claim.

B. The State Law Claims

The Complaint asserts claims against Redanauer under state law for violation of Article I,

Sections 1 and 8 of the Pennsylvania Constitution and for assault, battery, and negligent infliction

of emotional distress. Redanauer has moved for summary judgment on Plaintiff’s Pennsylvania

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Constitutional law claim pursuant to Jones v. City of Philadelphia, 890 A.2d 1188 (Pa. Commw. Ct.

2006). The Commonwealth Court held in Jones that there is no right to monetary damages for

violation of the Pennsylvania Constitution. Id. at 1216. Plaintiff concedes that Jones precludes his

proceeding on his claim for violation of Article I, Sections 1 and 8 of the Pennsylvania Constitution.

Defendants’ Motion for SummaryJudgment is, accordingly, granted with respect to Plaintiff’s claim

for violation of Article I, Sections 1 and 8 of the Pennsylvania Constitution.

Redanauer has also moved for summary judgment on Plaintiff’s tort claims because those

claims are barred by the Political Subdivisions Tort Claims Act, , 42 Pa. Cons. Stat. Ann. §§

8541-64. “The Tort Claims Act waives the sovereign immunity of local governmental units and their

employees only in connection with eight categories of ‘negligent acts,’ specifically: ‘(1) Vehicle

liability. --The operation of any motor vehicle in the possession or control of the local agency . . .

(2) Care, custody or control of personal property . . . (3) Real property ... (4) Trees, traffic controls

and street lighting . . . (5) Utility service facilities . . . (6) Streets . . . (7) Sidewalks . . . (8) Care,

custody or control of animals.’” Lakits v. York, 258 F. Supp. 2d 401, 406 (E.D. Pa. 2003) (quoting

42 Pa. Cons. Stat. Ann. § 8542(b)); see also 42 Pa. Cons. Stat. Ann. § 8545. These categories are

strictly construed. Lakits, 258 F. Supp. 2d at 406 (citations omitted). Redanauer’s shooting of

Plaintiff obviously does not fall into any of these categories. Outside of these categories, a municipal

employee may only be held liable in tort when his or her conduct “constituted a crime, actual fraud,

actual malice or willful misconduct.” Pa. Cons. Stat. § 8550. In order to prove willful misconduct,

a plaintiff must establish that the actor specifically intended the result of his or her actions. Bright

v.WestmorelandCounty, 443 F.3d 276, 287 (3d Cir. 2006) (quoting Robbins v. Cumberland County

Children and Youth Svcs., 802 A.2d 1239, 1252-53 (Pa. 2002)). Plaintiff has admitted that he does

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not believe that Redanauer intended to shoot him. (Small Dep. at 40.) We conclude, accordingly,

that Plaintiff’s state tort law claims are barred by the Tort Claims Act. Defendants’ Motion for

Summary Judgment is, therefore, granted with respect to Plaintiff’s state law claims.

IV. CONCLUSION

For the foregoing reasons, Defendants’ Motion for Summary Judgment is granted with

respect to the Section 1983 claim brought by Plaintiff in Count I of the Complaint for violation of

his Fourth Amendment right to be free of unreasonable seizures. Defendants’ Motion for Summary

Judgment is also granted with respect to the Monell claim asserted in Count I of the Complaint and

with respect to the state law claims asserted in Count II of the Complaint. The Motion for Summary

Judgment is denied only as to Plaintiff’s Section 1983 claim for violation of his Fourteenth

Amendment right to substantive due process asserted in Count I of the Complaint. 

An appropriate order follows.

Case 2:05-cv-05291-JP Document 20 Filed 03/01/07 Page 22 of 23
IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ANTOINE SMALL, JR. : CIVIL ACTION

:

v. :

:

CITY OF PHILADELPHIA, ET AL. : NO. 05-5291

O R D E R

AND NOW, this 26th day of February, 2007, upon consideration of Defendants’ Motion for

Summary Judgment (Docket No. 12) and the documents filed with respect thereto, IT IS HEREBY

ORDERED that the Motion is GRANTED in part and DENIED in part as follows:

1. Defendant’s Motion is DENIED with respect to Plaintiff’s Section 1983 claim,

asserted in Count I, that Detective Redanauer violated his Fourteenth Amendment

right to substantive due process.

2. Defendants’ Motion is GRANTED in all other respects.

3. JUDGMENT is hereby ENTERED in favor of the City of Philadelphia and against

Plaintiff.

BY THE COURT:

/s/ John R. Padova

__________________

John R. Padova, J.

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